Reinstatement And The ADA

An Illinois Hearing Board has recommended the reinstatement of an attorney convicted of two retail thefts.

Petitioner’s first conviction stemmed from an incident that occurred at a Sports Authority store in Niles, Illinois, on June 6, 2006. The criminal complaint charged that while shopping with his wife and son, Petitioner knowingly took possession of a baseball and a t-shirt valued at $31.99. Petitioner was charged in a one-count misdemeanor complaint with retail theft in violation of 720 ILCS 5/16A-3(a). Following a bench trial on December 8, 2006, Petitioner was found guilty of retail theft and sentenced to one year of misdemeanor probation, 112 hours of community service, payment of fines and costs, and completion of parenting classes.

Petitioner’s second conviction stemmed from an incident which took place on October 31, 2006, at a Costco store in Niles, Illinois. The criminal complaint charged that while shopping with his wife and son, Petitioner knowingly took possession of, carried away, or transferred a digital camera valued at $1299.99, without paying the full retail value of the merchandise. Petitioner was charged with one count of retail theft in violation of 720 ILCS 5/16A-3(a). On January 9, 2007, Petitioner pled guilty to that charge and was sentenced to two years of probation and ordered to avoid contact with Costco. 

He had denied the offenses

According to Petitioner, the first incident in June 2006 took place when he and his wife and son stopped at a Sports Authority in Niles on their way home from his son’s baseball practice. After they left the store without buying anything, Petitioner was approached by several individuals who requested he accompany them back into the store. Once back inside, they went into a room where the individuals questioned Petitioner and asked him to empty his pockets. Petitioner testified he had a baseball in his pocket, which he had brought with him from the practice field. He also had his wife’s tank top, which Petitioner had picked up when his wife changed after practice. Although the store employees did not initially accuse Petitioner of stealing the items, they eventually suggested he was trying to steal something. After Petitioner denied the accusation, the individuals told him he could get out of the situation by paying a small fine. Petitioner refused to pay the fine because he had not committed any crime. 

The Costco incident

Petitioner testified that the events leading to his second arrest began after he arrived home from work on October 31, 2006. As he was getting out of his car, Petitioner encountered two individuals in his driveway. Petitioner recognized one of these individuals as one of the Sports Authority employees but he did not know the other. Petitioner testified these men did not say anything to him, but just hit him in the face and throat so he was unable to speak. They then grabbed him by his jacket, removed his wallet, and stole his money. According to Petitioner, before the individuals left, they demanded he meet them later that night at the Costco store in Niles. Petitioner stated he was frightened by this incident. (Tr. 37-39, 116-17, 119).

Although Petitioner had never been to the Costco store in Niles, he followed the instructions of these individuals and went. Petitioner testified he was angry when he arrived at Costco. After entering the store, Petitioner went to the camera department, which is where they were supposed to meet, and came across a display of cameras in boxes. Petitioner picked up one of the boxes, opened it, and removed the camera and lens. A Costco employee approached Petitioner, saw what he was doing, and took him into a back room. Petitioner stated he never left the store with the camera and lens. (Tr. 38-40, 116-19).

According to Petitioner, the Costco employee did not originally intend to charge him with stealing. After the employee called the police, however, the same officer from the Sports Authority incident showed up and convinced the Costco employee Petitioner should be charged. Petitioner was then placed under arrest and charged with a felony for stealing the camera. 

Two points of interest – the hearing board concluded that his denial of guilt did not preclude reinstatement and that the American with Disabilities Act did not prevent a requirement of mental health treatment as a condition of reinstatement

With respect to the issue of ADA compliance, we note that the authority cited by Petitioner involved bar admissions practices in other states and is not directly applicable to this reinstatement proceeding. Furthermore, the terms of the Settlement Agreement entered into in the Louisiana matter are clearly not binding on us here. Nevertheless, we have considered the significant issues addressed in those proceedings and believe our recommendation, which is set forth below, is consistent with the Justice Department’s interpretation of the ADA and the spirit of the Settlement Agreement. We note that our recommendation is not based solely on Petitioner’s prior mental health diagnosis, but on his past conduct which led to his prior disciplinary proceeding and the suspension of his law license. Additionally, the condition we are recommending is based on our concern that issues regarding Petitioner’s conduct have not been fully mitigated or addressed, because Petitioner has not demonstrated he has been symptom-free while engaged in the practice of law.

(Mike Frisch)